Takkanat Usha: The Essential and Accidental Cost of a Mitzvah (Column 606)

This past Shabbat I spoke in the synagogue about Takkanat Usha. An interesting halakhic principle came up that is worth pondering, and I wanted to present it here.

Takkanat Usha

The Talmud, Ketubbot 50a, states:

R. Ilai said: In Usha they enacted that one who spends [for charity] should not spend more than a fifth. A baraita likewise: one who spends should not spend more than a fifth—lest he come to depend on others. And there was an incident with one who sought to spend [more than a fifth], and his colleague did not allow him; and who was he? R. Yeshavav; and some say: it was R. Yeshavav and his colleague did not allow him; and who was his colleague? R. Akiva. Said Rav Naḥman, and some say Rav Aḥa bar Yaakov: What verse [supports this]? “And all that You give me I will surely tithe to You” [Gen. 28:22]. But the second tithe is not comparable to the first tithe [how then do we reach a fifth]? Rav Ashi said: “I will surely tithe”—the latter like the former [i.e., twice a tenth equals a fifth].

Here we are presented with an enactment that one should not spend more than one-fifth of his wealth on charity. The Gemara derives this from a verse in our parashah (Genesis 28:22):

“And this stone which I have set up as a pillar shall be a house of God, and of all that You give me I will surely tithe to You.”

It does not appear that the verse deals with charity but rather with giving to Heaven. Nor does it say here that one should not spend more than a fifth; rather, it is Jacob’s vow to give a fifth of his property to Heaven. It therefore seems to be a mere asmakhta (a scriptural support), and indeed from the Gemara’s wording we see that this is a “takkanah,” an enactment. Ramban, in his glosses to the First Root, writes that whenever the Talmud asks “mai kra” (“what verse?”), it is an asmakhta and not a true derivation.

Despite all this, the Vilna Gaon in his Shenot Eliyahu to Pe’ah 1:1 writes that this is a Torah law:

“And this prohibition [that one may not spend more than a fifth] is from the Torah. That which the Gemara says ‘in Usha they enacted not to spend more than a fifth’—the explanation is that originally it was a law given to Moses at Sinai, and afterward it was forgotten, and they returned and established it like the original law; this is the meaning of ‘in Usha they enacted,’ namely that there they restored the ancient law given to Moses at Sinai. So it is in the Jerusalem Talmud, this chapter.”

However, it has already been noted that this does not necessarily emerge from the language of the Yerushalmi (see, for example, Torah Temimah ad loc.).

The Rishonim understood that this applies not only to the mitzvah of charity but to all positive commandments: one must expend up to a fifth of his assets on them (up to a fifth is obligatory, beyond a fifth is prohibited), in contrast to a prohibition (lav), for which one must give away all his wealth rather than transgress. So the Rema rules (Orach Chayim 656) in the name of the Ra’avad and the Rashba:

“One who does not have an etrog, or [for] any other passing mitzvah, need not spend an excessive fortune on it; as they said: ‘one who spends, should not spend more than a fifth,’ even for a passing mitzvah (the Rosh and Rabbenu Yerucham). And this is specifically for a positive commandment, but for a prohibition he must give all his money before transgressing (the Rashba and Ra’avad) (see also the gloss at the end of siman 658).”

Some, to be sure, disagreed, as can be seen in Klei Ḥemdah on this verse, but the accepted ruling follows as above.

The Acharonim’s Difficulty from the Prohibition

Regarding charity, the enumerators of the commandments count a positive commandment (“you shall surely open your hand”) and also a prohibition—or even two (“you shall not harden your heart” and “you shall not shut your hand”). From here several Acharonim wondered about the Usha enactment with respect to charity: since charity involves a prohibition as well, we should have to give all our money, not only a fifth, in order not to transgress the prohibition. Various answers have been offered.

Some explained this in light of Ramban’s view cited in column 416 (see also Divrei Yeḥezkel §12:18 and §15). We saw there that there are prohibitions whose entire point is to bolster the corresponding positive commandment—e.g., “do not place blood in your house,” which supports the positive commandment “you shall make a parapet for your roof.” Ramban in Kiddushin 34 explains that if such a positive commandment is time-bound, women are exempt from it even though there is a prohibition alongside it, because the prohibition comes to ensure fulfillment of the positive commandment; if women are exempt from the positive commandment, then clearly the prohibition is not relevant to them either.

Accordingly, the Responsa of Maharil Diskin (I: Piskei Din §24) explains that there is no obligation to spend all one’s money because of the prohibition side of charity: if a person would have to spend more than a fifth of his wealth, then there is no positive commandment (since for a positive commandment one spends only up to a fifth), and therefore the prohibition—which merely supports the positive commandment—does not apply; consequently, one need not spend beyond a fifth even on account of the prohibition.

However, this does not seem to emerge from the Gemara’s language. The Gemara explicitly says that the prohibition to spend more than a fifth stems from our concern that the donor himself not become dependent on others (“lest he come to depend on others”). Indeed, other Acharonim explained that even though there is also a prohibition, one should not spend more than a fifth on charity because excessive donations will make the donor poor and himself a recipient of charity. That is, the goal of charity is to reduce poverty, but in such a case the giving does not reduce overall poverty in Israel (it merely replaces one poor person with another), and therefore this is not proper.

A Different Explanation: The Difference Between the Prohibition and the Positive Commandment

In column 236 I argued that, at least according to Rambam, there is a difference between the prohibition and the positive commandment of charity. Regarding the positive commandment, Rambam writes:

“The 195th commandment is that we were commanded to perform charity, to strengthen the weak and provide them generously. The command regarding this mitzvah appears in different formulations. He, may He be exalted, said (Deut. 15:8): ‘you shall surely open your hand…’; and He said (Lev. 25:35): ‘you shall support the stranger and the resident…’; and He said (ibid. 36): ‘and your brother shall live with you.’ The intent of all these expressions is one: that we help their situation and strengthen them sufficiently for their needs. The laws of this mitzvah have been explained in many places, most of them in Ketubbot (48–51a; 66b–68a) and Bava Batra (8–11a; 43a). And the tradition taught (Gittin 7b; to the end of the chapter, p. 285) that even a poor person who is supported by charity is obligated in this mitzvah, that is, in charity—to one who is beneath him or like him, even with a small amount.”

We see that the goal of the positive commandment is to improve the pauper’s situation. By contrast, regarding the prohibition (negative commandment) 232, he writes:

“The 232nd commandment is that He warned us not to withhold charity and generosity from the needy among our brethren once we know their weakness and our ability to support them; this is His saying (Deut. 15): ‘you shall not harden your heart and you shall not shut your hand from your needy brother.’ This is a warning against acquiring the trait of stinginess and cruelty that would prevent us from doing what is proper.”

Here he does not speak of improving the pauper’s state, but of improving the donor’s character. I brought a source for this distinction from the Talmudic discussion in Bava Batra.

In light of this distinction we can resolve the difficulty about the “fifth” in charity differently. If a person refrains from giving half his wealth to charity, the poor person may remain in a bad state—he has failed to fulfill the positive commandment—but we certainly cannot view this as “hardening the heart” or “shutting the hand.” This is not miserliness or stinginess but reasonable prudence. Thus, in such a case he may neglect a positive commandment, but he surely does not transgress a prohibition. Consequently, there is no reason to spend half his fortune; for a positive commandment one spends up to a fifth.

This explanation is not necessarily different from the previous one. The earlier approach said there is no obligation to give excessively because that would just replace one pauper with another. It may be that this is precisely the reason there is no prohibition upon one who refrains from giving half his fortune to charity. Although similar, there seems to be a halakhic difference: according to the earlier explanation, when more than a fifth would be required there is no positive commandment at all; it makes no distinction between the positive commandment and the prohibition and does not need Rambam’s distinction. According to my explanation, however, there may still be a positive commandment (improving the pauper’s situation is indeed required), but one is exempt from spending the money because for a positive commandment we do not spend beyond a fifth—and there is no prohibition here.

Therefore, on this explanation there is no difficulty from the Gemara’s wording that bases it on the concern “lest he come to depend on others,” for that same concern underlies my explanation: this concern justifies his refusal to give and prevents it from being viewed as stinginess. In the previous explanation, the concern is the Torah’s, which exempts us from a large outlay for charity; in my explanation, the concern is the individual’s, and the Torah recognizes it as legitimate—hence he is not considered stingy.

The Meaning of Spending Money in the Mitzvah of Charity

I already noted that the authorities extend the Usha enactment to all positive commandments, as opposed to prohibitions. But it seems there is a difference between charity and other positive commandments. In charity we do not spend more than a fifth because of the purpose of the mitzvah (reducing poverty in the world); in other mitzvot we do not spend more than a fifth so as not to create poverty. For the other mitzvot one cannot say that their aim is to reduce poverty, yet the Torah (or the Sages) still does not want observance of mitzvot to generate poverty. By contrast, according to the last explanation, this is essential to the very definition of the mitzvah of charity (which, in this case only in the prohibition dimension, addresses stinginess). The implication is for a case where a prohibition is attached to some other mitzvah: on the first explanation, I would not spend more than a fifth because the Torah has pity on me—but if there is a prohibition alongside it, it is like any other prohibition, for which the Torah still demands that I give all my money. Of course, if the prohibition merely supports the positive commandment (like the parapet according to Ramban), then I would be exempt from spending even on account of the prohibition. According to my explanation, however, if there is a prohibition attached to another positive commandment, and that prohibition’s subject is not improvement of one’s character vis-à-vis stinginess but a regular prohibition, then I have no exemption and must spend all my wealth to avoid it. This is another implication of the distinction I drew above.

Bottom line: if we do not take into account Ramban’s rationale—or at least in mitzvot where it does not exist (i.e., where the prohibition does not serve to support the positive commandment)—there is a difference between charity and other positive commandments. If there is an additional prohibition alongside them, then for the other mitzvot we would have to spend all our wealth because of the prohibition, unlike charity. What is unique about charity is that in other mitzvot the monetary outlay is an incidental condition required for observance in the particular circumstances (e.g., I lack my own etrog). Observance of the mitzvah itself does not inherently require money. In charity, by contrast, the giving of money is the very essence of the mitzvah. This is not due to circumstantial factors; the mitzvah’s essence is spending money. On the earlier explanation, this is technically true of both the positive commandment and the prohibition; on my explanation, it is because the mitzvah (in this case, only on the prohibition side) is not to be stingy. Where the price demanded arises from the mitzvah’s very definition and is not merely an external condition, our treatment of “cost” in that mitzvah should be different.

Parenthetically, this makes it difficult to extend the rule from charity to other mitzvot: perhaps the prohibition on “wasteful spending” was said only about charity. It seems the authorities understood that for all positive commandments we should not come to depend on others, even if there is no necessary analogy to charity. In any case, it seems that in charity specifically there is a special situation in which the “price” of observance is inherent to the mitzvah itself and not external to it. I now wish to demonstrate this foundation with respect to wars and then in additional halakhic contexts.

Milḥemet Mitzvah and Wars in General: The Difficulty

There is a difficulty raised by the Acharonim regarding a milḥemet mitzvah (mandated war). We know there are three grave transgressions for which one must give up his life—idolatry, sexual immorality, and murder. But de facto, there are other mitzvot that require this: mandated wars. A person who goes to war significantly endangers his life, and ostensibly this should be prohibited. As is well known, all prohibitions are set aside by piku’aḥ nefesh (saving life), even a doubt of danger. How then is one permitted to go out to a mandated war?

Thus, for example, Peninei Halakha cites several Acharonim:

“It is a mitzvah to wage a defensive war against Israel’s enemies, and this mitzvah is greater than the mitzvah to save an individual life. For to save one life—or even several lives—the rescuer is not obligated to risk his own life; but to save Israel from their enemies, each individual is commanded to risk his life (Mishpat Kohen §143; Tzitz Eliezer 13:100; see Peninei Halakha, Likutim II, 11:3).”

This is puzzling, for the mitzvah also includes wars that are not defensive (e.g., the mitzvah to conquer the land). Parenthetically, I have elsewhere noted that in my opinion defending Israel from an immediate enemy is not a “mandated war” in the usual sense; there the permission comes simply from piku’aḥ nefesh, so it proves nothing. The proof must come precisely from mandated wars that are not defensive.

An even greater difficulty (see, for example, here) arises regarding optional wars (milḥemet reshut). There, there is neither piku’aḥ nefesh nor a mitzvah, yet we go to such war and endanger life. How is that permitted?

The difficulty expands when we consider that in the context of war various prohibitions are allowed. Chief among them is killing, of course. Beyond that, eating forbidden foods and other prohibitions were permitted. Therefore, all wars are fought even on Shabbat, including those that involve no immediate danger and could be postponed to a weekday (see also here; and see here for an interesting debate whether this is due to piku’aḥ nefesh or not). All this joins the permission to endanger the soldiers themselves, mentioned above.

Milḥemet Mitzvah and Wars in General: The Difficulty

There is a famous remark by the Minḥat Ḥinukh, mitzvah 525. The topic there is the war against the seven nations, and the Sefer ha-Ḥinukh writes at the end:

“One who transgresses this, and one of them comes into his hand and he can kill him without endangering himself and did not kill him, has nullified this positive commandment, aside from having transgressed the prohibition stated regarding them (Deut. 20:16): ‘you shall not let a soul live,’ as we will write at the end of Sefer Shoftim, mitzvah 528.”

On this the Minḥat Ḥinukh comments:

“And the author wrote: ‘and one who transgresses this, and one of them comes into his hand and he can kill him without endangering himself…’ This requires investigation. Granted that all mitzvot are set aside for danger, nevertheless this mitzvah—the Torah commanded us to wage war against them, and it is known that the Torah does not rely on a miracle, as the Ramban explains; and as a matter of the natural world, men are killed on both sides in war. Thus we see that the Torah decreed to wage war against them even though it is dangerous. Therefore, danger is overruled in this case, and it is a mitzvah to kill him even if one will thereby endanger himself. This requires investigation.”

Note that he does not even pose the question of how one may endanger life—it is, for him, axiomatic. He expresses surprise at the Sefer ha-Ḥinukh, which seems to imply otherwise (that only if the soldier does not endanger his life). His assumption is that the permission to go to war is based on the Torah’s command to wage mandated wars, and the Torah does not rely on miracles. That is, it is clear that soldiers will be killed in war, and still we were commanded to go and fight. Thus, the Torah tells us that these commandments override piku’aḥ nefesh. We may still wonder about optional wars, but if we find a source that the Torah permits such war, the Minḥat Ḥinukh’s reasoning returns: that permission necessarily includes permission to risk life.

This may prove the law, but it does not answer the difficulty: why indeed does the Torah command—or at least permit—us to endanger life for mitzvot other than the three cardinal sins? And why are prohibitions set aside in this framework? And in particular, why is all this true even for optional wars?

It seems that the Minḥat Ḥinukh hints at an answer. If we could not risk life in wars, we would be unable to wage wars at all (for we do not rely on miracles). Rav Kook, in a responsum, writes that an optional war waged for economic reasons is permitted because that is how a nation functions (indeed, functioned in the past—this has thankfully changed), and without it one cannot function as a nation. But mandated wars are not necessary for national functioning, and yet they are permitted, as are the prohibitions in their context, because there are mitzvot that can be fulfilled only this way. Without it, we could not fulfill those mitzvot, so there is no alternative but to risk life. The alternative would be that we could not fulfill those commandments at all.

Still, why were we commanded in such mitzvot? Why did the Torah not forgo them due to their inherent cost? Because fulfillment of these mitzvot is important to the Torah even if, statistically, it entails loss of life. This is not a demand that a specific individual die for a mitzvah, as with the three cardinal sins. Here it is about taking a risk that some soldiers will die. The collective organism must fulfill this mitzvah even at the price of that risk. Note: unlike the three cardinal sins, this does not mean that the mitzvah is more important than life. Rather, since it is commanded upon the collective, and collective functioning entails risking soldiers’ lives, that is the Torah’s framework. I discussed this in columns 529–530. Therefore, the kal va-ḥomer cited above from Peninei Halakha in the name of Acharonim is, in my view, incorrect (and optional wars prove the point).

In other words: in war, risking life is not an external rule about which we can ask whether it is permitted to risk life for this mitzvah (or action). The soldier’s risk is inherent to war (since the Torah does not rely on miracles); therefore, it must be that risking life is permitted here. It is not appropriate to analyze it under the ordinary rules of piku’aḥ nefesh as we do with other mitzvot. For example, Shabbat observance does not inherently involve a risk to life. Usually we keep Shabbat without endangering ourselves. Circumstances may arise in which keeping Shabbat would require risking life; there we discuss whether it is permitted or forbidden to risk life for Shabbat. The risk is an external “price” that can appear in certain circumstances and does not always accompany Shabbat. By contrast, in a mandated war, risk is part of the essential mode of fulfillment. It always involves danger to life, and that is precisely what the commandment to wage war addresses.

Accordingly, one might distinguish between the mitzvah of settling the land and the mitzvah of conquering the land. Conquest inherently involves risking soldiers’ lives, whereas settlement does not. Its normal observance does not endanger life; danger arises only if an enemy comes and threatens us. Generally, if we forgo settlement the need for conquest will arise, but conceptually they are distinct, and at least on the theoretical level they are certainly different.

Note: A Similar Distinction in Halakhah and Morality

I drew a similar distinction in my lessons on halakhah and morality (see also column 541). As a rule, my view is that halakhah and morality are two independent categories, both included in the Divine will. Therefore, when they clash there is no a priori way to determine which prevails; sometimes halakhah prevails and sometimes morality. But there are cases where it is clear that halakhah prevails—namely, when the clash is essential.

The Torah commands us to keep Shabbat, but not every Shabbat observance entails danger to life. Therefore, when circumstances arise in which Shabbat stands opposite danger to life, we must discuss and conclude which prevails. But in commandments like executing Shabbat desecrators or Amalekite children, there is an essential clash between halakhah and morality, and the Torah tells us to do it. From there it is clear that the Torah teaches that in these cases we must set aside morality and follow halakhah. If we did not, these commandments would become dead letters. With Shabbat observance, even if we decide it is set aside for danger to life, the Shabbat command does not thereby become a dead letter; the obligation remains in cases without danger. But for mitzvot like killing Amalek or Shabbat desecrators, where the clash is essential, if we refrain on moral grounds the command becomes a dead letter. This is precisely the distinction I made above regarding “cost.”

The Connection Between War and Charity: External and Essential Cost

Note that this distinction is exactly like the one I presented above regarding monetary outlay for charity. There, too, we saw that the “price” (money, not life) required for the mitzvah is not the result of incidental circumstances but inherent to its fulfillment. Charity requires giving money, unlike, say, the Four Species, which can be fulfilled without monetary outlay; only circumstances may create a need to pay for it.

In the context of wars, the result of this distinction is a stringency: we must risk life for a mitzvah even if it is not one of the three cardinal sins—because risking life is not an external cost but the essential mode of fulfilling that mitzvah; thus the usual discussion of “cost” does not apply. Here, we arrive at a leniency regarding charity: one does not spend more than a fifth of one’s wealth. In both cases, the question of “price” is not treated as in the rest of halakhah, and in both cases that is because the price is inherent to the mitzvah, not external to it. Without spending money there is no mitzvah of charity, and without risking life there is no war. The conclusions may be stringent in one case and lenient in another.

I will now bring several halakhic examples where this distinction appears.

Hiddur Mitzvah on Ḥanukkah

In column 528 I discussed a similar foundation regarding hiddur mitzvah (beautifying a mitzvah) in the Ḥanukkah lights. We saw that for most mitzvot the duty to beautify extends up to a third of the price of the mitzvah. But with the Ḥanukkah lights, mehadrin min ha-mehadrin spend many times the base cost. The basic mitzvah is one light per household; mehadrin min ha-mehadrin add incrementally (and according to some views, one set per household member), meaning 36 lights (perhaps multiplied by the number of household members) instead of a total of 8.

There I cited Rav Yigal’s explanation that for Ḥanukkah candles it is not the ordinary “This is my God and I will beautify Him” principle, but a special, mitzvah-specific form of hiddur that is essential to the mitzvah. Here we are required to beautify as a remembrance of the cruse-of-oil miracle that enabled beautification of the Menorah lighting. The enactment was from the outset to beautify; therefore, the demanded hiddur can be different in its parameters from ordinary hiddur. Again, the cost calculus changes (this time stringently) because the cost is essential, not external, to the mitzvah.

Intention in Shofar Blowing and Sitting in the Sukkah

As is known, there is a dispute in the Talmud and later authorities whether mitzvot require intention (kavanah) or not. But there are exceptions where intention is required according to all views. The best-known example is the Bach’s inference from the Tur at the beginning of the laws of Sukkah. The Tur opens Hilchot Sukkah in §625 with an exposition of the idea of the mitzvah:

“‘You shall dwell in sukkot for seven days… so that your generations may know that I caused the Israelites to dwell in sukkot when I brought them out…’ The verse links the mitzvah of Sukkah to the Exodus from Egypt, as it does with many mitzvot, because it is something we saw with our own eyes and heard with our ears, and none can deny it. It teaches the truth of the existence of the Creator, blessed be He, Who created everything at His will, and Who has the power, dominion, and ability over the higher and lower realms to do with them as He wishes, with none to say to Him ‘what are You doing,’ as He did with us when He brought us out of Egypt with signs and wonders. And the sukkot in which He settled us were the clouds of His glory that surrounded them so that sun and heat not strike them. As a model of this, He commanded us to make sukkot so that we remember His wonders and awesomeness. And even though we left Egypt in Nisan, He did not command us to make a sukkah then, because it is summer and people ordinarily make a sukkah for shade and it would not be recognizable that we are doing it by command of the Creator, blessed be He. Therefore He commanded us to make it in the seventh month, which is the rainy season, when people ordinarily leave the sukkah for the house, and we leave the house to sit in the sukkah; thus it will be evident to all that it is the King’s command upon us to do so. This sukkah must be in a place appropriate to make it, and from appropriate materials, and its walls must be proper in their dimensions and number, and its s’khakh must be proper, and it must not be higher than its measure nor lower than its measure nor smaller than its measure.”

Dedicating an entire siman to the concept of the mitzvah is unusual in the Tur, and therefore the Bach (ad loc., §1) infers:

“‘You shall dwell in sukkot…’—the verse links… One should question our teacher’s words, for it is not his usual way in this work to explain the intent of verses; he only rules or teaches practice. Here he lengthens to expound the verse. It seems to me to say that since it is written ‘so that your generations may know,’ one does not fulfill the mitzvah as required unless he knows the intent of the mitzvah of Sukkah in its plain sense. Therefore he explained, according to the simple meaning, that the principal intention in sitting in the sukkah is to remember the Exodus. This is also the reason our teacher wrote in the laws of ẓiẓit (§8) that one should intend, upon wrapping, that the Omnipresent commanded us… and likewise in the laws of tefillin (§25) that one should intend upon donning them that the Omnipresent commanded us… in order that…—which he did not do in other laws, for there he did not write that one should intend any intention in performing the mitzvah; because one who performs the mitzvah properly fulfills it even without any intention. But with ẓiẓit, where it is written (Num. 15:40) ‘so that you shall remember,’ and with tefillin (Ex. 13:9) ‘so that the Torah of the Lord shall be in your mouth’—whose plain meaning is that the tefillin are a sign and remembrance so that the Torah of the Lord be fluent in our mouths, for with a strong hand He took you out—it appears that one does not fulfill the mitzvah as required unless he intends that intention. So too with Sukkah, where it is written ‘so that your generations may know,’ it implies that he must intend, when sitting in the sukkah, the intended reason of the mitzvah.”

Sukkah, like ẓiẓit and tefillin, is a mitzvah in which, according to all views, intention is indispensable. Why? Because in other mitzvot intention is external to the act and can be absent while the mitzvah is fulfilled. In these contexts, however, intention is part of the mitzvah’s essence; thus, without intending one does not fulfill it. The source is the Torah itself, which, with Sukkah, writes “so that your generations may know”—the purpose and aim of the mitzvah is embedded in the command. This is unusual in the Torah (sometimes a reason is given, as with the king “so that his heart not turn aside,” or the ban on pardoning a murderer “so that you not pollute the land”; see more examples in Rambam’s Fifth Root and Ramban’s glosses), but here it specifies the very requirement of what one must think while performing it.

Indeed, the Mishnah Berurah rules this way, and it is commonly assumed, although I must say the inference itself seems doubtful to me. The question why the Tur devotes a siman to the concept is a good one, of course—but had he wanted to innovate a legal ruling, he should have said so explicitly.

A similar idea appears in the Gemara regarding intention in shofar blowing. In Rosh Hashanah 28a–b the Gemara debates whether mitzvot require intention; within the discussion it entertains the possibility that even if mitzvot do not require intention, shofar would require intention to the point of invalidation, because it says “a memorial of teru’ah,” implying that when one sounds the blast one must remember. There this is a rejected suggestion (but see another possibility in my article on shofar blowing on Shabbat). Note that in both contexts the intention in question is not the intention to fulfill the obligation (the subject of the general “do mitzvot require intention” debate), but a mitzvah-specific intention. The reason is obvious.

The Commandments of Love

In columns 22 and 239, and in detail in the article here, I discussed the nature of the commandments of love (and emotions in general) in halakhah. Here I will illustrate through the Pahad Yitzḥak (Pesach §29:4) on love of the convert. He was asked why Rambam counts it separately, since it is included in loving one’s fellow (the convert is a Jew, and the obligation to love every Jew includes converts).

The Pahad Yitzḥak explains as follows:

“To explain this we shall envision the case in the aspect of love. Reuven loves Shimon, and Shimon is indeed a member of the covenant; but Reuven errs and thinks him not a member of the covenant. Shall we say that Reuven fulfilled the mitzvah of loving one’s fellow by this? Certainly not. For every love has a reason, and the reason is included in the mitzvah of loving one’s fellow. That is, the mitzvah does not mean simply to love someone who happens to be from Israel, but to love him because he is from Israel. The reason for the love is part of the mitzvah. The meaning of the verse ‘and you shall love your fellow’ is that you love him specifically because he is your fellow.”

“It follows that if Reuven loves a Jew but does not recognize him as a Jew, then the cause of this love is not the other’s Jewishness; this is a love ‘without the reason’ required by the mitzvah, and the mitzvah of loving one’s fellow is not fulfilled by such love. And likewise for the converse, regarding hatred.”

That is, the requirement that the beloved be a convert is not external but part of the essence of the mitzvah-act. In other words, this is not a “reason” for the mitzvah but its definition: when you love someone, it is not enough that he happens to be a convert; you must love him because he is a convert. That must be part of the state of love in your soul. This closely resembles what we saw regarding intention in the mitzvah of Sukkah.

Gerama (Indirect Causation) and Intention in the Shabbat Labors

There is a Tannaitic dispute about intention in transgressions. R. Yehudah holds that one who “does not intend” is liable (i.e., intention is not required), whereas R. Shimon holds he is exempt, i.e., without intention one is not liable. This is a general requirement across prohibitions: to incur liability, intention is needed. The halakhah follows R. Shimon—exempt—but several authorities note that there are labors in which intention is part of the very definition of the labor. In these labors, if one performed the act with a different intention he did not transgress at all; even R. Yehudah would agree that without the requisite intention he is exempt. The Maggid Mishneh (see, e.g., Hilchot Shabbat 10:17), the Eglei Tal, and the Minḥat Ḥinukh in his “Mossakh ha-Shabbat” bring several examples in the laws of Shabbat. These are cases where intention is an essential condition in defining the labor, not an external requirement to avoid the category of “unintended action.”

Similarly, in Bava Kamma 60a the Gemara explains that “winnowing (zoreh) and the wind assists him” on Shabbat is liable (in contrast to “he fanned and the wind fanned” in damages, where he is exempt). R. Ashi says there that on Shabbat the Torah forbade “melechet maḥshevet” (thoughtful/intentional labor), and therefore the wind’s involvement does not exempt him. The Rishonim disagree on R. Ashi’s meaning. Rashi holds that for this reason indirect causation (gerama) is liable on Shabbat, because if one’s plan is carried out that suffices to render it “his act” on Shabbat (one does not need direct action, it suffices that his plan is realized). Thus, direct causation is an essential condition for all prohibitions but not for Shabbat labors. The Rosh, however, writes the opposite:

“Just as with winnowing, and the wind assists him, we consider it as if he did the labor alone. For there, the Torah prohibited ‘thoughtful labor’; although it is only indirect causation, the Torah made him liable because this labor is primarily done by means of wind. But here [in damages] it is mere indirect causation, and indirect causation in damages is exempt.”

He explains that even on Shabbat indirect causation is exempt, but specifically in winnowing, wind involvement does not exempt, because that is the nature of the labor—its usual performance is by means of wind.

This is an example of an essential feature in defining a labor that does not appear in the other labors. In winnowing, the involvement of the wind is essential to its definition; that is how it is always done. In other labors, they are not ordinarily done by wind, so where wind is involved that exempts him, for no labor has been performed: there is a requirement of direct human action.

Measure (Shi’ur)

A common halakhic requirement is the legal measure. We can also ask whether it is essential or external. For example, the olive-volume (ke-zayit) for eating prohibitions: there is a prohibition and a measure that determines when it applies, but the measure is external to the prohibition itself. Therefore, even if one eats “half a measure” the halakhah (like R. Yoḥanan) is that he violates a Torah prohibition, though he is not flogged until he eats the full measure.

Above we saw that the “one-fifth” measure—at least regarding charity—is essential. This means that less or more than that may not count as the mitzvah at all. It is not like other measures of the Torah that are external. One implication could be regarding “half a measure”: we would expect that in such cases “half a measure” is not prohibited at all, since if the measure is essential then with less than the measure there is nothing—this is not a mere quantitative deficiency, as with other prohibitions.

For example, some argue that the perutah value commonly used in monetary mitzvot is essential; the implication would be that less than a perutah is not “money” at all. The deficiency is not merely quantitative but qualitative. If a person steals less than a perutah, it is commonly thought he has transgressed but need not return it because the victim forgives such amounts; but some opinions hold that theft of less than a perutah is not theft at all (and no forgiveness is required). There are examples in Choshen Mishpat 359, and this seems to be implied by Rashi in Sanhedrin 57a. Commentators on Rambam appear divided (Hilchot Geneivah 1:2—see the Maggid Mishneh there, who treats less than a perutah like “half a measure”—and Hilchot Gezeilah va-Avedah 1:2). See also R. Asher Weiss’s article, where he cites that for measures derived from umdena (estimation) of the Sages, not from a Sinaitic tradition (halakhah le-Moshe mi-Sinai), the rule of “half a measure” does not apply; because where an estimation sets the measure, less than that is considered nothing. Only measures that are Sinaitic are external to the prohibition and do not define it.

This may also explain the curious law in Kiddushin 12a: if a man betroths a woman with a date worth less than a perutah, she is doubtfully betrothed—“perhaps it is worth a perutah in Media.” The explanation is that if it is worth a perutah in Media it has the status of “money,” and therefore one may betroth with that date even where it is not worth a perutah. We see that the perutah is a marker of “money,” not merely a measure; therefore, less than a perutah is not money. This is not an issue of insufficient value but of essence.

Several Acharonim wrote that the rule of “half a measure” applies only to quantity, not to quality. Thus, for example, the Sefat Emet at the beginning of tractate Shabbat says that if one performed akira (uprooting) or hanacha (setting down) alone, he did not transgress “half a measure” of carrying (which requires both uprooting and setting down), because this is a qualitative half:

“However, it seems that here it is not called ‘half a measure’ but ‘half a labor,’ and this is not prohibited at all—unlike eating half an olive of fat, where there is a prohibition but the measure is lacking. From Rambam (Hil. Shabbat 12:9) it sounds that uprooting alone or setting down alone is like half a measure [since he listed them together], and similarly slightly from the Tur (OC 347) and the Sefer Mitzvot Gadol (Negative 65)—this requires investigation.”

His claim is that if there is only akira, this is not “half of carrying” but no carrying at all (similarly the Rosh explains why “this one uproots and this one sets down” is not like “two who performed [one labor] together”).[1] Likewise, there are cases where the quantitative measure is an essential requirement (such as a perutah in defining money, or the fifth in the mitzvah of charity).

Summary

The distinction between a requirement that is inherent to a mitzvah and one that is external may arise with any of the “cross-cutting” requirements the halakhah posits for mitzvot. When such a requirement appears, we must always ask whether it is essential or external (accidental). In most cases it is external, but there are instances where it emerges as an essential requirement.

A more effective way to discuss this is from the opposite direction: halakhah makes cross-cutting demands of all mitzvot—in the realm of cost, beautification, intention, and measure. As general, cross-cutting demands, they are external, since they apply across mitzvot and therefore are unlikely to define the specific act itself (see a logical discussion of this in the book Yishlaḥ Shoreshav, and in the article on the Fourth Root, where I applied this to the “inclusive” commandments and explained why such cross-cutting principles are not counted among the 613). Yet for each such requirement we can ask whether there are cases where it appears as an essential demand rather than an external, cross-cutting one. In this column we saw that for each such cross-cutting demand there are indeed examples of mitzvot in which it appears as an essential requirement.[2]

[1] Some understood him as referring to what several Acharonim wrote—that the “half a measure” rule applies only to eating prohibitions or to object-prohibitions. I do not think that is his intent. The implication is for one who carried two cubits out of four in the public domain. That is “half a labor,” i.e., half of an act, but there there is room to prohibit under “half a measure,” since it is a quantitative half, not a qualitative one.

[2] In column 22 I brought another example from the Eglei Tal’s introduction regarding enjoyment and joy from performing the mitzvah of Torah study.